dismissed H-1B Case: Management Consulting

MATTER OF M-M-3 INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE L 2016 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a ··management consulting"' firm, seeks to temporarily employ the Beneficiary as a 
.. budget analyst" under the H-1 B nonimmigrant classification for specialty occupations. ,\.,'ee 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(11)(i)(b). 
The H-18 program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner had not demonstrated that the protTered position qualities for treatment as a specialty 
occupation position. 
The matter is now before us on appeal. In its appeal. the Petitioner asserts that the Director erred in 
denying the visa petition. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Law 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term ''specialty occupation"' as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
Matter of M-M-3 Inc. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the profTered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative. an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( ..J) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C .F.R. § 214.2(h)( 4 )(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term '·degree'' in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Cherto.ff: 484 F.3d 139, 147 (lst Cir. 2007) (describing .. a degree 
requirement in a specific specialty" as .. one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner. 201 F.3d 384. 387 (5th Cir. 2000). 
B. The ProtTered Position 
The Petitioner stated on the Form 1-129, Petition for a Nonimmigrant Worker. that the Beneficiary 
will serve as a .. budget analyst." On the labor condition application (LCA) submitted in support of 
the H-1 B petition, the Petitioner stated that the Beneficiary will serve as a '·market research 
analyst,'' 1 and designated the proffered position under the occupational category "Market Research 
Analysts and Marketing Specialists" corresponding to Standard Occupational Classification (SOC) 
code 13-1161.2 
1 The Petitioner did not explain why it referred to the proffered position as a "budget analyst'' on the Form 1-129 and as a 
"market research analyse in the LCA. 
2 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment: (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance. Nonagric. Immigration Programs (rev. Nov. 2009). available at 
http://Hcdatacenter.com/download/NPWHC _Guidance _Revised _II_ 2009.pdf A prevailing wage determination starts 
2 
Matter o(Af-M-3 Inc. 
In an addendum to the Form 1-129 vtsa petition, the Petitioner provided the following duty 
description for the position: 
Identify lucrative markets for the services and products offered by the business clients 
of the Petitioner; Devise methods and procedures to conduct their research 
effectively; Based on the various researches and their results prepare detailed reports 
regarding market potential for each service/product offered by the business clients of 
the Petitioner; Prepare reports based on market analysis for the business clients 
engaged in sale of product or services; Suggest improvised methods of marketing by 
drawing comparison with competitors and recommending better marketing strategy 
which is may [sic] carry more appeal to the client/customer base ofboth the Petitioner 
and its business clients; Highlight the realistic return for certain marketing measures: 
Gather information on competitors, prices, sales and methods of marketing and then 
use such results to develop a better marketing strategy for business clients of 
Petitioner: Use research results and statistics to prepare comprehensive marketing 
packages for business clients;· Work together with Budget Analyst to ensure that the 
recommendations are suitable to the budgetary limitations of an given client' Conduct 
research to help the Petitioner determine the variations of demand among various 
markets having specific needs in terms of products and services; Include 
recommendations for improvisations of an existing organizational structure with the 
goal to enhance profitability: Assist the Petitioner in developing promotional plans to 
capture new clients; and Prepare and give presentations when necessary. 
C. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualities as a specialty occupation. 
Specifically, the record contains unresolved inconsistencies that undermine the Petitioner's claims 
regarding the nature and scope of the profTered position.3 
First, we find that the Petitioner used alternating references to the protTered position as ··budget 
analyst" .. market research analyst," .. management accountant" and .. financial manager." The 
Petitioner referred to the position as a '·budget analyst" in the Form 1-129: a .. market research 
analyse in the LCA; a .. management accountanC in one of the letters; and a .. financial manager" on 
appeal. However. these four job titles describe separate positions located within different 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner"s job opportunity. /d. 
3 
The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 
Matter l?{M-M-3 Inc. 
occupational categories. Further. as we will discuss later, these occupations have difTering 
prevailing wage requirements. 
Moreover, the organizational chart references two ··financial/budget analysts,"" one .. market research 
analyst:' and one '·management accountant" positions: but it is not clear which position the 
Beneficiary would fill. The Petitioner's response to the request for evidence (RFE) complicates 
matters further. as it states that the Beneficiary (who, again, according to the Fonn 1-129 would work 
as a .. budget analyst"), would .. work as a team with Budget Analyst." 
Next we observe that many of the Petitioner's assertions indicate that the Beneficiary would have high­
level responsibilities. For example. the Petitioner claims on appeal that proffered positon is the 
company's .. backbone'' and that it is "crucial for the Company:· and has referenced the .. complex"" 
nature of the job duties repeatedly. However. such duties and responsibilities appear inconsistent with 
the Level I (entry) wage-level selected here. In designating the proffered position at a Level I wage 
level, the Petitioner has indicated that the proffered position is a comparatively low, entry-level 
position relative to other positions within the occupational category, and that he would perform 
routine tasks that require limited. if any, exercise of judgment. The Petitioner's designation or the 
protTered position as a Level I. entry-level position is inconsistent with these and other stated duties 
and responsibilities, and raises questions regarding the substantive nature of the proffered position.cf 
Further. we note that the duty description states that the Beneficiary would perform his analysis for 
the Petitioner's clients, but the Petitioner has not provided sufficient evidence to support its claims. 
In the RFE. the Director requested additional evidence to show that the Petitioner would have 
specialty occupation work available for the Beneficiary throughout the entire period of employment 
requested in the H-1 B petition. 
The Petitioner responded, as follows: 
[USCIS] has raised its concern about in House Employment and availability of 
projects/specialty work for the Beneficiary. 
It appears that [USCIS] is under the impression that the Beneficiary will be working 
for third parties and perhaps the Petitioner's role is like a job shop. This is an 
.J The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its claim 
that the position is relatively higher than other positions within the same occupation. Nevertheless, it is important to note 
that a Level I wage-designation does not preclude a proffered position from classification as a specialty occupation. In 
certain occupations (doctors or lawyers, for example), an entry-level position would still require a minimum of a 
bachelor"s degree in a specific specialty, or its equivalent. for entry. Similarly, however, a Level IV wage-designation 
would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an 
entry requirement of at least a bachelor"s degree in a specific specialty or its equivalent. That is, a position's wage level 
designation may be a consideration but is not a substitute for a determination of \Vhether a proffered position meets the 
requirements of section 214(i)(l) ofthe Act. 
4 
(b)(6)
Matter l?(M-M-3 Inc. 
incorrect impression. The Beneficiary will be employed directly by the Petitioner and 
will be solely on Petitioner's pay roll and shall be solely the Petitioner's employee. 
The Petitioner also submitted a March 28, 2012, letter, in which the Petitioner and another company 
with common ownership, agreed that the Petitioner would provide the 
Beneficiary's services to the other company. The Petitioner stated, in its September 9, 2014, letter, 
that the other company is in the same business as the Petitioner. 5 
However, the Petitioner provided no evidence to substantiate that this other company has any work 
available for the Beneficiary. The Petitioner has not demonstrated that it has any work to which to 
assign the Beneficiary and has not, therefore, demonstrated the substantive nature of the work. if 
any, to which it would assign the Beneficiary if the H-1 B petition were approved. 
Based on all of the inconsistencies listed above, we find that the Petitioner did not establish the 
substantive nature of the work to be performed by the Beneficiary. ··[J]t is incumbent upon the 
petitioner to resolve the inconsistencies by independent objective evidence." Matter o{Ho, 19 I&N 
Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. /d. at 
591-92. The Petitioner has not provided sufficient evidence to overcome the inconsistencies. 
The inability to establish the substantive nature of the work to be performed by the Beneliciary 
precludes a finding that the proffered position is a specialty occupation under any criterion at 8 
C.F.R. § 214.2(h)(4)(iii)(A). because it is the substantive nature of that work that determines (I) the 
normal minimum educational requirement for the particular position, which is the focus of criterion 
1: (2) industry positions which are parallel to the proffered position and thus appropriate for review 
for a common degree requirement, under the first alternate prong of criterion 2: (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. 6 
" On the visa petition. Petitioner described its "Type of Business" as "Primarily Management Consulting; Plans. develops 
and implements Marketing Campaigns for Businesses.'' While this assertion is acknowledged. we note that a general 
Internet search indicates that both of these companies' addresses are sandwich shops. 
6 
Even if the proffered position were established as being that of an entry-level market research analyst or budget analyst 
performing routine tasks requiring limited, if any, exercise of judgment, a review of the U.S. Department of Labor's 
(DOL's) Occupational Outlook Handhook (Handhook) docs not indicate that, simply by virtue of such an occupational 
classification, such a position would qualify as a specialty occupation in that the Handhook does not state a normal 
minimum requirement of a U.S. bachelor's or higher degree in a specific specialty, or its equivalent, for entry into 
positions located within either occupational category. See U.S. Dep 't of Labor, Bureau of Labor Statistics, Occupational 
Outlook Handhook. 2016-17 ed., "Budget Analysts," http://www.bls.gov/ooh/business-and-financial/budget-analysts.htm 
and "'Market Research Analysts,'' http://www.bls.gov/ooh/business-and-tinancial/market-research-analysts.htm (May 25. 
2016 ). As such, absent evidence that the position satisfies one of the alternative criteria available under 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A). the instant petition could not be approved for this additional reason. 
5 
(b)(6)
Matter <?lM-M-3/nc. 
The Petitioner has not demonstrated that the protTered position qualities for treatment as a specialty 
occupation position. The appeal will be dismissed on this basis. 
II. BENEFICIARY'S QUALIFICATIONS 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation. we need 
not fully address other issues evident in the record. That said. we wish to identify additional issues 
to inform the Petitioner that these matters should be addressed in any future proceedings. 7 
Evidence in the record shows that the Beneficiary earned a 
administration, with no further concentration, from 
insufficient evidence pertinent to any other degree he may possess. 
master's degree in business 
in 2010. The record contains 
A general degree in business administration alone is insufficient to qualify the Beneficiary to 
perform the services of a specialty occupation. unless the academic courses pursued and knowledge 
gained is a realistic prerequisite to a particular occupation in the field. See Matter <?l Ling. 13 I&N 
Dec. 35 (Reg'! Comm'r 1968) (finding that ""'Business administration· is a broad field. a field which 
contains various occupations and/or professions, all of which are related to the world of business but 
each requiring a different academic preparation and experience peculiar to its needs"'). The 
Petitioner must demonstrate that the Beneficiary obtained knowledge of the particular occupation in 
which [he/she] will be employed. /d. Thus. even if the Petitioner had demonstrated that the 
profTered position requires at least a bachelor's degree in a specific specialty. or its equivalent. the 
petition could not be approved. because the Petitioner has not demonstrated that the Beneficiary has 
taken courses or gained knowledge considered to be a realistic prerequisite to any specific specialty 
within the field of business. 8 The Petitioner has not, therefore, shown that the Beneficiary is 
qualified to work in any specialty occupation position. This is an additional reason why the instant 
visa petition may not be approved. 
III. NON-CORRESPONDING LCA 
We will now address another additionaL independent ground that precludes approval of this petition. 
Specifically. we find that the Petitioner did not submit an LCA that corresponds to the 
petition. 
The Form I-129 states that the proffered position is a budget analyst position. Budget analysts are 
involved in cost analyses, fiscal allocations, preparation and review of budgets. and similar duties. 
They are addressed in O*NET at SOC 13-2031.00 and in the Handbook at 
http:/ /Vvww. bls.gov/ooh/business-and- tinanciallbudget-analysts.htm (last visited May 26. 2016 ). 
7 
In reviewing a matter de novo. we may identify additional issues not addressed below in the Director's decision. See 
Spencer Enterprises. Inc. v. United States, 229 F. Supp. 2d 1025. 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 
2003) (""The AAO may deny an application or petition on a ground not identified by the Service Center."). 
8 That the Petitioner found the Beneficiary's otherwise undifferentiated master's degree in business administration a 
sufficient educational preparation for the proffered position is yet another reason to find that the proffered position has 
not been demonstrated to be a specialty occupation position. 
6 
Matter <~f M-M-3 Inc. 
The LCA is certified for a position located within the .. Market Research Analysts and Marketing 
Specialists" occupational category. Market research analysts are involved in gathering and 
interpreting market data. and in preparing and presenting reports pertinent to market data. O*NET 
addresses such positions at 13-1161.00. The Handbook addresses market research analyst positions 
at http://www.bls.gov/ooh/business-and-financial/market-research-analysts.htm (last visited May 26. 
2016). 
As noted. the Petitioner has also referred to the profTered position as that of a management 
accountant and a financial manager. 
We find that the Petitioner did not select the most relevant O*NET occupational code classitication.
9 
The ·'Prevailing Wage Determination Policy Guidance .. states the following: 
In determining the nature qf'the job l?{ler. the first order is to review the requirements 
of the employer"s job otTer and determine the appropriate occupational classification. 
The O*NET description that corresponds to the employer"s job otTer shall be used to 
identify the appropriate occupational classification . . . . If the employer's job 
opportunity has worker requirements described in a combination of O*NET 
occupations. the NPWHC should default directly to the relevant O*NET -SOC 
occupational code for the highest paying occupation. For example. if the employer's 
job offer is for an engineer-pilot the NPWHC shall use the education. skill and 
experience levels for the higher paying occupation when making the wage level 
determination. 
The Petitioner stated in the LCA that the \Vage level for the proffered position is Level I (entry). The 
Level I prevailing wages for the four occupational categories the Petitioner has alternatively claimed 
the position to be are as follows: 
Occupational Category Level I prevailing wage at time of LCA 
certification 
Market Research Analysts and Marketing $17.09 per hour ($35.547 per year) 
Specialists 
Budget Analysts $24.21 per hour ($50J57 per year) 
Accountants and Auditors $19.53 per hour ($40.622 per year) 
Financial Managers $34.97 per hour ($72,738 per year) 
9 
U.S. Dep"t of Labor, Emp't & Training Admin., Prevailing Wage Determination Poli9· Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/ 
pdfiNPWHC _Guidance_ Revised _II_ 2009.pdf 
Matter <?f M-M-3 Inc. 
The prevailing wage for all three occupational categories at a Level I wage arc significantly higher 
than the prevailing wage for the ··Market Research Analysts and Marketing Specialists" category 
selected by the Petitioner. Thus, according to DOL guidance, if the Petitioner believed its position 
was appropriately described as one of these other occupational categories, or was a combination of 
them. it should have chosen the relevant occupational code for the highest-paying occupation. 
However, the Petitioner chose the occupational category for the lower paying occupation for the 
proffered position on the LCA. 
While DOL is the agency that certifies LCA applications before they arc submitted to USCIS. DOL 
regulations note that the Department of Homeland Security (DHS) (i.e .. its immigration benefits 
branch. US CIS) is the department responsible for determining whether the content of an LC A filed 
for a particular Form 1-129 actually supports that petition. The regulations state. in pertinent part: 
For H-18 visas ... DHS accepts the employer's petition (DHS Form 1-129) with the 
DOL certified LCA attached. In doing so. the DHS determines whether the petition is 
supported hy an LCA which corre.\p(mds lvith the petition. whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability. and whether the qualifications of the 
nonimmigrant meet the statutory requirements of H-1 B visa classification. 
20 C.F.R. § 655.705(b) (emphasis added). 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-1 B petition tiled on behalf of the Beneficiary. Here, the Petitioner has not submitted a 
certified LC A that corresponds to the claimed duties of the profTered position. Therefore. the 
petition cannot be approved for this additional reason. 
IV. PRIOR APPROVALS 
We are aware that the instant visa petition is an extension petition. A prior approval does not 
compel the approval of a subsequent petition or relieve the Petitioner of its burden to provide 
sut1icient documentation to establish current eligibility for the benefit sought. Temporary Alien 
Workers Seeking Classification Under the Immigration and Nationality Act. 55 Fed. Reg. 2,606. 
2,612 (Jan. 26, 1990) (to be codified at 8 C.F.R. pt. 214). A prior approval also does not preclude 
USCIS from denying an extension of an original visa petition based on a reassessment of eligibility 
for the benefit sought. See Tex. A&Al Univ. v. Upchurch, 99 F. App'x 556 (5th Cir. 2004). We are 
not required to approve petitions where eligibility has not been demonstrated. merely because of 
prior approvals that may have been erroneous. See Matter (~{Church Scientology In/'/, 19 I&N Dec. 
593. 597 (Comm 'r 1988). It would be "absurd to suggest that [USCIS] or any agency must treat 
acknowledged errors as binding precedent." Sussex Eng 'g. Ltd. v. J\4ontgomery, 825 F.2d 1084. 
1090 (6th Cir. 1987). 
8 
Matter l~{ M-AI-3 Inc. 
V. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act. 8 U.S.C. § 1361; Matter l~lOtiende, 26 I&N Dec. 127. 128 (BIA 2013). Here. that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as l\latter ~lM-M-3 Inc., ID# 17201 (AAO June L 2016) 
9